Papp & Myers (No 3) - [2022] FedCFamC1F 1024

Federal Circuit and Family Court of Australia
(DIVISION 1)
Papp & Myers (No 3) [2022] FedCFamC1F 1024

File number: SYC 5372 of 2018

Judgment of: HENDERSON J

Date of judgment: 14 December 2022

Catchwords:
FAMILY LAW – CHILDREN – Orders – Contravention – Where the mother has previously been found guilty without reasonable excuse for nine counts of breaching final orders – Where the father sought orders to vary the final orders inter alia – Where a Child Impact Report identifies a risk if the father recommenced time immediately – Where the risk appears to be caused by the conduct and subterfuge of the mother – Orders made for the parents and the child to attend upon reportable intensive family therapy inter alia.

FAMILY LAW – COSTS – Between parties – Discretion – Where the father sought an order for the mother to pay his costs on an indemnity basis – Where the mother opposed such an order – Consideration and application of relevant factors under section 117(2A) of the Family Law Act 1975 (Cth) – Circumstances justifying order – Where the Contravention Application was necessitated by the conduct of the mother – Where the mother was wholly unsuccessful for the nine grounds of contravention pressed – Where the conduct of the mother amounted to a subterfuge – Discretion to be exercised for costs – Consideration of principles of indemnity costs – Where the circumstances of the matter do not fall within the category of cases justifying indemnity costs – Order made for the mother to pay the costs of the father on a party/party basis.

Legislation:
Family Law Act 1975 (Cth) s 102NA, 117(2), (2A)(c), (2A)(d), (2A)(e).

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13.

Cases cited:
Donaghey & Donaghey (Costs) (2012) 47 Fam LR 306; [2012] FamCA 231.

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116.

Lenova & Lenova (Costs) [2011] FamCAFC 141.

Limousin & Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178.

Papp & Myers [2020] FamCA 127.

Papp & Myers [2022] FedCFamC1F 936.

Papp & Myers (No 2) [2022] FedCFamC1F 937.

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4.

Rankin & Rankin (No 3) [2019] FamCAFC 133.

Worth & Worth (No 2) (2019) FLC 93-910; [2019] FamCAFC 126.

Division: Division 1 First Instance

Number of paragraphs: 59

Date of hearing: 14 December 2022

Place: Sydney

Counsel for the Applicant: Mr Longworth

Solicitor for the Applicant: Michael Conley Lawyers

Counsel for the Respondent: Mr Antill

Solicitor for the Respondent: Jack Rigg Solicitors
ORDERS

SYC 5372 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PAPP

Applicant

AND:
MS MYERS

Respondent

order made by:

HENDERSON J

DATE OF ORDER:

14 DECEMBER 2022

THE COURT ORDERS THAT:
1.The father and mother do all acts and things necessary to attend upon and participate with X (“X”), born 2015, in Reportable Intensive Family Therapy with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Papp & Myers (No 3)

Details

AGLC: Papp & Myers (No 3) [2022] FedCFamC1F 1024
Case: [2022] FedCFamC1F 1024
Decision Date

CaseChat Overview and Summary

The matter of Papp & Myers (No 3) was a hearing following a Contravention Application filed by the father, Mr Papp, against the mother, Ms Myers, for breaching final orders made by Justice Harper on 22 May 2020. Justice Henderson found the mother guilty without reasonable excuse for nine counts of breaching the final orders. The father sought orders to vary the final orders, including the commencement of intensive family therapy. The mother opposed the father's application and objected to the proposed therapist, Dr WW. After reading a Child Impact Report that identified a risk if the father recommenced time immediately, Justice Henderson ordered that the parents and the child attend reportable intensive family therapy with Dr WW in Town B over a four-day period. The father was to initially pay all necessary fees to Dr WW and the mother was to reimburse one half of all costs associated with that therapy upon receipt of the relevant invoices and documents, to be paid by 16 June 2023. The mother was also ordered to sign a letter directed to X's school and return it to the father within seven days, with the alternative of a registrar signing the letter if she failed to comply. The mother was to pay the father's costs on a party/party basis in the sum of $48,457 by 16 June 2023. If the father filed an Initiating Application, that matter was to be listed before Justice Henderson for case management to obtain the earliest possible trial, which trial was to be conducted by a Justice other than Justice Henderson. Justice Henderson exercised their discretion to order the mother to pay the father's costs on a party/party basis, considering the circumstances of the matter did not fall within the category of cases justifying indemnity costs. The mother's failure to comply with orders to attend Court to enter into a bond was a feature of her conduct and attitude to the proceedings and the orders of the Court.

Orders